Associated General Contractors of California, Inc.

ASSOCIATED GENERAL CONTRACTORS OF CALIF., INC. 363 Contractor Members of the Associated General Contractors of California, Inc. and A. R. Kramer, Petitioner and Teamsters Local Union Nos. 94, 137, 150, 216, 287, 291, 315, 386, 431, 439, 490, 533, 624, 684, 890, 912, and 980, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America. Case 20-RD-721 March 5, 1974 SUPPLEMENTAL DECISION AND DIRECTION OF ELECTION By CHAIRMAN MILLER AND MEMBERS FANNING, JENKINS, AND PENELLO On January 17, 1973, the National Labor Relations Board issued a Decision and Order' in the above- entitled proceeding in which it found that the owner- operators involved were "employees" within the meaning of the Act and therefore eligible to participate in the decertification election sought. The Board also stated: While we have found the owner-operators to be employees and that they are entitled to partici- pate in an election, the present records before us disclose that the only issue fully litigated at the hearings related to the question of whether they were employees or independent contractors, and the parties are not all in agreement regarding other issues Thus, as a means of illustration and not limitation, the parties would appear not to agree as to the unit which will be appropriate, the eligibility of employees now entitled to vote, and whether or not a joint employment situation exists where owner-operators are supplied by overlying carriers. Accordingly, we deem it necessary to remand each case to the appropriate Regional Director for such further action as the Regional Director deems appropriate regarding the above- mentioned and any remaining issues preparatory to directing elections. Pursuant to the Board's remand order further hearings were held in this case in San Francisco on June 12, 13, 14. and 15, 1973, before Hearing Officer Robert G. Grace. Thereafter, pursuant to Section 102.67 of the National Labor Relations Board Rules and Regulations and Statements of Procedure, Series 8, as amended, the Regional Director again trans- ferred the case to the Board for decision. All parties involved have filed briefs. The Board has reviewed the rulings of the Hearing Officer made at the hearing and finds that they are free from prejudicial error. The rulings are hereby affirmed. Upon the entire record in this case, the Board makes the following findings. The Petitioner and David A. Bettencourt, the Intervenor, hereinafter referred to as Petitioners, seek a decertification election in a bargaining unit of construction industry drivers under the so-called Northern California Master Agreement, covering Northern and Central California, between the Unions herein involved and the contractor associa- tions. By way of background, when this case was originally before the Board, the primary position of the Petitioners was that they, and others similarly situated, considered themselves independent contrac- tors whom the Unions purported to represent. Without abandoning this position, they stated that if they nevertheless were found to be employees, they were asserting that the Unions did not in fact enjoy majority support from them for purposes of collec- tive bargaining. Consequently, they sought decertifi- cation of the Union. In the present posture of the case, the Petitioners contend that, inasmuch as the Board has found them to be "employees," they now take the position that an election in'this case should be conducted in a unit consisting solely of owner-operators and that the employee-drivers of the contractors should be ex- cluded. While conceding that a unit limited to owner-operators constitutes only a portion of the contract unit established by the Northern California Master Agreement and would constitute a deviation from the Board's general rule that the unit appropri- ate in a decertification election must be coextensive with the unit previously certified or the unit recognized,2 they nevertheless contend that the facts of this case constitute good and sufficient reasons for deviation from the normal rule applicable to decerti- fication elections. The thrust of their argument in favor of a unit smaller than the recognized contractual one is that there is no real community of interest between owner-operators and the employee-drivers, and that the community of interest between owner-operators is such that they could constitute an appropriate unit separate and apart from employee-drivers. Primarily, they contend that the differences between the interests, motivations, and objectives of the owner- operators and the employee-drivers stem largely from the fact that owner-operators either own or have substantial financial investments in the equip- ment they operate. The foregoing, and other argu- ments advanced in favor of a separate unit, are essentially the same ones which were argued by the 1 201 NLRB 311. 2 See Campbell Soup Company. 1I I NLRB 234, and Clohecy Collision, Inc, 176 NLRB 616. 209 NLRB No. 61 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD parties to the Board in the earlier proceeding in support of their contention that the owner-operators were independent contractors. In rejecting that contention and finding employee status, the Board considered, inter alia, the fact that once on the job the owner-operators work under the same conditions as do employee-drivers. The contractor establishes the starting time, quitting time, and the lunchbreak for all dump truck drivers, be they owner-operators or employee-drivers. Representatives of either the contractor or overlying carrier, or both, direct owner- operators as well as employee-drivers in such matters as location of material, dumpsite, and routes to be taken. Thus, many of the facts which established the employee status of these individuals also show the community of interest they share with the employee- drivers. Accordingly, we do not view the owner- operators' substantial financial investments in their trucking equipment, and other indicia of separate- ness, sufficient to warrant modification of the recognized unit. In this respect we also find no merit in the contentions raised by both the Employers and Petitioners that cases such as Fisher-New Center Co.,3 Duke Power Company Lee Steam Station,4 and Food Fair Stores, Inc.,5 require a separate more restricted unit in this case. Fisher involved a recognized unit of guards and nonguards and the Board concluded that the statutory requirement of Section 9(b)(3) of the Act made necessary an exception to the general rule established in Campbell Soup, supra. Both Food Fair and Duke Power essentially involved separate plants or departments which within themselves could be separate units and which had not become merged with the overall unit.6 Nor do we find persuasive the argument that where a large unit is appropriate, Section 8(f) of the Act otherwise requires the carving out of a smaller portion of that unit. On the basis of the foregoing, we find the recognized unit appropri- ate for purposes of a decertification election.? The petition when filed related to the 1968 Master Agreement which expired in June 1971. The petition was subsequently amended so as to cover the 1971 master agreement which was in effect at the time of the hearings. The later agreement contained a clause substantially similar to the previous one insofar as owner-operators were concerned except it provided that the coverage of the owner-operators would begin on the second day of work and would also apply to work performed for the employer away from the jobsite. It further provided, however, that the additional provision regarding work performed away from the jobsite would not be implemented if unfair labor practice charges were filed regarding it. At the time of the first hearing, there was a question as to whether the owner-operator coverage clause extend- ed to so-called nonjobsite work since unfair labor practice charges had been filed regarding the offsite coverage. Subsequent to the Board's decision finding that the owner-operators are employees within the meaning of the Act, such charges were dismissed in April 1973. Thus, the owner-operator clause now extends tojobsite and nonjobsite work. The record herein discloses the existence of a group of contractors who are not members of the multiem- ployer association signatory to the master agreement. They do, however, in many instances execute with the Unions a "short form" agreement which embod- ies therein certain provisions of the master agree- ment. The Unions argue that, since these "short formers" adopt the master agreement and because their employee-drivers work under conditions similar to these of the other employees, the employees of "short formers" should be included in the unit. The Employers and Petitioners disagree. The record establishes that the multiemployer associations signatory to the master agreement negotiate separately with the Unions and do not have the authority, nor do they purport, to negotiate on behalf of or bind the many contractors who sign the short form agreements . It appears that, after the negotiations of the association contract, the Unions undertake negotiations with the "short formers" on an individual basis . While the agreements incorpo- rate various features of the master agreement, each excludes the grievance procedure contained in the master agreement. Inasmuch as the record clearly shows that the "short formers" by virtue of not being signatory to the master agreement are not members of the multiemployer associations unit, the addition of employees employed by them would expand the unit's scope beyond that contemplated by the contract. Accordingly, we conclude that the employ- ees of "short formers" should be excluded from the unit. The evidence herein does not otherwise support a finding that a joint employer relationship exists between the contractor members of the associations and the "short formers." A question for further consideration on remand was whether the overlying carrier was a joint employer with the contractor when furnishing owner- 3 170 NLRB 909. must be coextensive with either the unit previously certified or the one 4 191 NLRB 308 recognized in the existing contract. s 204 NLRB No. 23 (Member Fanning dissenting) r Petitioners state they are willing to proceed to an election in any unit 6 Member Fanning adheres to his view as expressed in his dissenting which is found appropriate. opinion in Food Fair that the unit appropriate in a decertification election ASSOCIATED GENERAL CONTRACTORS OF CALIF., INC. operators. At the instant hearing, evidence was presented which tended to show that once owner- operators are dispatched to a job the overlying carriers have very little contact with them and do not exercise supervision and control over the details of the work performed by owner-operators. When owner-operators perform work for contractors, either directly or through an overlying carrier, it is the contractors who retain and exercise the authority to control the details of their work and to impose discipline. These facts do not warrant a finding that the overlying carriers are joint employers with the contractors. The parties agree, and the evidence shows, that the patterns of employment for the employees in this case are sporadic. They contend the Board should adopt an eligibility formula which incorporates the principles set forth in Daniel Construction Company, Inc.,8 with certain modifications which will permit those employees, neither working at the time of the election nor having worked during the normal payroll eligibility period, but still having a reasonable expectation of future employment, to participate in the election.9 We find merit in this contention. Accordingly, we shall direct that, in addition to those employees in the unit who were employed during the payroll period immediately preceding the date of this Decision and Direction of Election, all employees in the unit who have been employed during the 30 calendar days immediately preceding the date of this Decision and Direction of Election or who have been employed for 240 hours or more during the 365 calendar days immediately preceding such date, shall be eligible to vote. The Petitioners and the Employers contend that the Employers should not be required to provide an election eligibility list as required by the Board's decision in Excelsior Underwear Inc,"' In this regard, they contend the Employers are not likely to have such information required for compiling the names and addresses of owner-operators. As an alternative, they suggest that, inasmuch as the California Public Utilities Commission (PUC) maintains the names and addresses of the approximately 6,500 dump truck carriers who hold permits in the State, the PUC's records should be the source for the names and addresses of owner-operators. With regards to employee-drivers, they suggest that union health and X 167 NLRB 1078. 9 The Employers lake no position on this proposal 365 welfare records should be the source of names and addresses. We note however that there is no evidence that the PUC lists have any relationship to employment within the unit. The other arguments advanced by the Petitioners and Employers to the effect that the contractors would not voluntarily honor a request for payroll information do not persuade us that there is sufficient justification for deviating from our normal policy of requiring payroll information for the purpose of establishing an eligibility list. According- ly, we shall require the Employers to submit a list of eligible voters. The Regional Director may supple- ment this information by also using relevant inform- ation maintained by the Unions as they have stated they are willing to cooperate in establishing the eligibility list. In accordance with the foregoing, we shall direct an election by mail ballot in the following unit: All employees of employer-members of Associat- ed General Contractors of California, Inc., the Engineering and Grading Contractors Associa- tion, and the Northern California Homebuilders Conference who were covered by the collective- bargaining agreement known as the Master Agreement entered into on September 23. 1971, between the above-mentioned associations and Heavy Highway Building and Construction Teamsters Committee for Northern California on behalf of Teamsters Local Unions Nos. 94, 137, 150, 216, 287, 291, 315, 386, 431, 439, 490, 533, 624, 684, 890, 912, and 980, but excluding all other employees including guards, watchmen, and supervisors as defined in the Act. [Direction of Election and Excelsior footnote omitted from publication.] MEMBER KENNEDY, dissenting: For the reasons set forth in my dissent to the original Decision and Order in this proceeding reported at 201 NLRB 311, I believe the owner- operators to be independent contractors and not employees within the meaning of the Act. According- ly, I believe the Board is prohibited by statute from conducting an election in which owner-operators are included in the unit. 10 156 NLRB 1236